Fentanyl bill criminalizing possession follows fear, not science, critics warn

A bill backed by Nevada Democratic Attorney General Aaron Ford that criminalizes substance mistreatment also penalizes people for having substantially lower amounts of illegal substances than the felony thresholds in federal law.

Republican Gov. Joe Lombardo signed the bill Friday. 

Ford’s bill, SB 35, echoes a national trend of legislation criminalizing fentanyl use — reverting away from evidence-based harm reduction models like testing strips and vending machines that offer clean syringes and nasal naloxone that garnered the state praise. 

Fentanyl, a synthetic opioid, is 50 times more potent than heroin and 100 times more potent than morphine, according to the Centers for Disease Control and Prevention (CDC). Its inability to be detected by sight, taste, smell or touch makes it harder for individuals to detect its presence in their drug of choice. 

The decade-plus opioid epidemic escalated from 2019 to 2020 at the height of the COVID-19 pandemic when the nation and Nevada saw increased opioid-related overdose deaths due to fentanyl. During that time overdose deaths in the state increased by 42%, higher than the national average of 33%, and fentanyl-involved overdose deaths increased by 227% in the state, according to the 2022 Nevada Opioid Needs Assessment and Statewide Plan released in December. 

“It’s easier to score political points by fear-mongering than following the science,” Maritza Perez Medina, the Director for the Office of Federal Affairs at the nonprofit Drug Policy Alliance, said about politicians’ move to introduce harsher drug laws. “We can’t rely on fear when we’re making policy, we need to rely on science and evidence and what that science and evidence tells us is that prohibition and  criminalization will not meaningfully impact overdose numbers, in fact, it will exacerbate the issue.” 

In an email exchange between the Current and Ford’s office, Ford did not directly address questions about the extent, if any, that political considerations that motivated SB 35.

“It is my job to ensure Nevadans are protected from the scourge of fentanyl trafficking. Fentanyl is a dangerous drug, and I could not stand idly by and do nothing while Nevadans died,” Ford wrote. 

Comparable penalties for lower volumes

Ford’s original version of SB 35 classified selling or possessing between 4 and 14 grams of fentanyl as a category B felony, punishable with a minimum term in state prison of one year and a maximum of 10 years. 

That bill was amended to increase those thresholds for punishment to between 28 grams (about two tablespoons) and  42 grams of fentanyl or a drug that contains fentanyl.

SB 35 also establishes that those who possess or sell between 42 and 100 grams be charged with high-level trafficking, punishable by a minimum of two years and a maximum of 15 years in prison. 

The federal sentencing guidelines for fentanyl trafficking are a 5-year minimum for 40 grams and a 10-year minimum mandatory minimum for 400 grams.

Although federal sentencing guidelines set longer prison terms than those in SB 35, the amount of substance required to trigger imprisonment is much smaller in the Nevada legislation.

Under existing Nevada statute, a person is guilty of low-level trafficking if the quantity is 100 grams or more but less than 400 grams, and is guilty of high-level trafficking if there are more than 400 grams of a Schedule II controlled substance like fentanyl.

As the bill was making its way through the legislative process, critics pointed out that the SB 35’s new punishments are not targeting the leaders of drug rings but rather low-level dealers, people who use illicit substances who pull money together to buy at a cheaper price, and even those who may be unaware that the people they’re with have drugs on them.

Opponents of the criminalization approach, including representatives of public defender offices in Clark and Washoe counties, likened the bill to the country’s failed war on drugs of prior decades, which antagonized and punished entire communities, including Blacks, Latinos, and those living in poverty. 

“I’m not trying to recreate the war on drugs from the crack era,” Ford said in response to those criticisms during a hearing on the legislation in April.  

Asked this week via email about the bill’s 100 grams threshold being so much smaller than levels that trigger prosecution in federal law, Ford did not directly address the issue, instead saying he “engaged a wide range of stakeholders to create balanced trafficking laws in SB35.”

A tainted drug supply and a lack of testing

The bulk of the illicit opioid drug supply in the country is cut with some form of fentanyl, often unbeknownst to the user or the seller —  and in drugs that generally would not be classified as opioids like Adderall, and other pills like Xanax and MDMA, along with cocaine laced with fentanyl.

But 2023 research shows that interrupting the drug supply leads to more dangerous conditions and overdoses. Researchers found within a six-minute walk of each drug arrest, opioid overdose deaths doubled in Indianapolis, Indiana because “interruption of supply drives people to new drug suppliers, who may have levels of active ingredient to which the individual is unaccustomed.” 

SB 35 applies to any “illicitly manufactured fentanyl,  any derivative of fentanyl or any mixture which contains illicitly manufactured fentanyl or any derivative of fentanyl,” but Nevada does not have the capacity to test drugs — a concern raised during several hearings throughout the legislative process. 

While the federal government has purity tests that can determine the chemical composition of a substance, efforts are underway to criminalize fentanyl-related substances which may have chemistry similar to illicit fentanyl but do not have similar physical and psychological effects under the “Halt All Lethal Trafficking of Fentanyl Act” or the “HALT Fentanyl Act.” 

The HALT Act passed the U.S. House last month with bipartisan support, including that of all four Nevada members of the House of Representatives. The measure, which the Senate has not acted on, does not change the federal sentencing guidelines. But it would classify fentanyl related substances as Schedule I drug under the Controlled Substances Act without regard to the pharmaceutical benefits or the psychological effects that they have — for the first time in the nation’s history.

“Some of these which would be classified hold therapeutic value and some are as harmless as water — we heard that from the government, yet this policy, which would be permanent under HALT, are treating them all as equally bad,” Perez Medina said.

Fentanyl is currently listed as a Schedule 2 substance with approved medical use, and other analogues of fentanyl have demonstrated medical and therapeutic value. 

More than 100 researchers signed a letter in opposition, noting that the “Permanent classification of FRS (fentanyl related substances) on Schedule 1, without first studying the pharmacological effects and epidemiological data of the individual substances, would set a dangerous precedent in U.S. drug scheduling.”

“We have concerns that we’re going back to mandatory minimums,” Perez Medina said, adding that if history is any guide the penalties will fall disproportionately on people of color.

‘War on drugs all over again’

The United States accounts for less than 5% of the world’s population, but almost 25% of its prisoners, many of whom have been arrested, prosecuted, and incarcerated for drug laws originally crafted in the 1970s when President Richard Nixon declared a “war on drugs” that pushed through mandatory sentencing laws for possessions. Under heightened public anxiety over drugs during the 1980s, President Ronald Reagan and Congress enacted the Anti-Drug Abuse Act of 1986, which mandated a 5-year minimum sentence for possession of 5 grams of crack cocaine. Someone would have had to possess 100 times as much powder cocaine to receive the same sentence, a wanton discrepancy that would exemplify the drug war’s deepening of the racial and class divide in America. 

While the opioid epidemic started over a decade ago with the overprescription of opioids, attention early on focused primarily on White suburban and rural communities, according to a 2020 report by Substance Abuse and Mental Health Services Administration (SAMHSA) on the opioid epidemic and race. 

The report noted that Black Americans had the highest increase in overdose death rate for opioid deaths involving synthetic opioids like fentanyl and fentanyl analogs.

Data from the federal government shows that people of color in the U.S. also disproportionately charged the most for fentanyl analog trafficking — 55.9% of people arrested were Black,  25.9% were Hispanic, 16.8% were White, and 1.4% were classified as other races, according to a 2022 report by the United States Commission. 

“There’s an unlimited supply of people who want to buy and sell drugs and jails and prisons cost a lot of money and the criminal justice system doesn’t work very well and it works in a racially biased way and people come out of jail and prison less healthy than when they went in,” said Mary Sylla, the director of overdose prevention policy & strategy at the National Harm Reduction Coalition. 

While SB 35 does include an amendment for Medical Assisted Treatment (MAT) for those incarcerated for fentanyl possession, it is only to the “extent that money is available” and does not allocate any funding for treatment or prevention services.  

Ford helped the state secure $849 million in opioid litigation-related funds including $193 million with Teva Pharmaceuticals announced June 7. 

The state and all counties and cities with opioid litigation entered the One Nevada Agreement on Allocation of Opioid Recoveries in 2019 to decide where the funding would be allocated.

While the bill did not have funding directly attached to it, Ford said those dollars are available to the state, counties and municipalities for the mitigation of devastating effects caused by the opioid crisis. This includes medication-assisted treatment for those with a substance use disorder.”  

Meanwhile, critics of the national trend to criminalizing fentanyl mistreatment say it’s an echo of failed policies of the past.

“It seems like the war on drugs all over again in response to this new synthetic opioid that has come into the drug supply in the United States,” Sylla said. “It’s like whack-a-mole trying to stop the drug supply or drug use by criminalizing it and that is what this scheduling of fentanyl is going to do.” 

“This has been going on a long time. Nixon started the War on Drugs, and Nancy Reagan said ‘Just say no to drugs.’ If everybody who wanted to could just say no to drugs we wouldn’t have a problem, but it just doesn’t work,” Sylla said. 

Note: This story was updated to reflect Lombardo signing the legislation.